Failure to protect | Daily News

Failure to protect

Over in the US, 2,000 children have been separated from Mexican families who have come over the border awaiting prosecution. We have seen visuals of the bodies of children from asylum seeking boats washing ashore or refugees fleeing quite simply drowning mid-sea.

All those fleeing or forced to cross borders are fleeing for safety and or better lives. The international regime which was meant to coax states to protect their citizens prevent conflicts which do force people to flee have all but failed.

The irony of current refugee flows is that in many instances powerful countries now called on to host refugees have contributed directly or indirectly with the support of arms or financing to fighting groups leading to instability in refugee-generating countries. Iraq, Syria, Libya being examples.

Existing refugee protection regime

Consisting of the 1951 Refugee Convention, its 1967 Protocol Relating to the Status of Refugees, and a variety of other regional instruments— has led to some of these refugees gaining protection in other states. Yet as the numbers forced to flee their homes have dramatically risen as a result of the Syrian civil war, some states have demonstrated a marked reluctance to open their borders. Quarrels among European states centre on the correct distribution of the responsibility to receive these refugees (despite the lion’s share being received by states in the Middle East) and refugees have been securitized and associated with terrorism.

States have a first-order duty not to create refugees. If they do not meet this duty because they engage themselves in persecution, because they fail to protect their populations from violence, famines and natural disasters, or because they lack the capacity to do so, then other states acquire a second-order responsibility to admit those as refugees who cannot be protected through external intervention or assistance.

As this general responsibility is shared by all states, it seems natural to assume that states should also share the burdens of refugee protection and integration. The international law fails, however, to specify any duty of assistance to states faced with large refugee inflows.

State responsibility

State responsibility cannot be reduced to non-deportation and adjudication; it extends to effective protection and eventually integration of those who cannot return. Putting the burdens of refugee integration on so-called ‘frontline states’ in the vicinity of refugee generating regimes and crises is not merely unfair towards the former but also means that the numbers of those who are provided with protection will be limited by the resources of these states.

Is the Convention itself flawed?

The basis for the current regime is the 1951 Refugee Convention, drafted to protect European refugees in the wake of World War II, and later expanded to provide protection to people fleeing persecution around the world. Over the years, there have been calls from all sides to reform the Convention.

The UN refugee agency, which is responsible for supervising its implementation, has generally opposed any suggestion that the Convention needs amending.

Hathaway, director of Michigan University’s refugee law programme, along with a team of lawyers, social scientists, NGO activists and government officials drawn from around the world, spent a good part of the 1990s coming up with solutions to those weaknesses. The core principle of the model they came up with was to ensure that responsibility for refugees was more equitably shared across states. The method: pre-determined quotas that would be administered by the UN’s refugee agency. A common international refugee status determination system would mean that a refugee could turn up at any border and be subject to the same process of assessment. They would then be relocated, usually within the region. Countries outside the region would provide guaranteed funding and resettlement places. The model didn’t catch on. “It lacked a champion,” recalled Hathaway. “UNHCR wasn’t keen on it, and the idea died.”

Hathaway believes that the model may now have come of age. The so-called refugee crisis finally has the attention of leaders in the developed world, while 20 years ago refugees were largely a problem for the developing world. Hathaway has always taken the stance that the problem is not with the Convention itself, but due to “a complete failure by UNHCR and states to innovate the way we actually deliver protection”.

His model would retain the Convention in its current form but completely overhaul its implementation. It would require a “revitalised” UNHCR with authority to allocate funds and responsibilities and to administer an international refugee status determination system. Hathaway argues that the budget for this expanded role could easily be generated from the money governments would save by not having to administer national systems for processing asylum claims.

One aspect of Hathaway’s 1997 model has had to be reworked for modern times. “The model initially assumed that most refugees would repatriate quite quickly. That’s not the case anymore,” he explained. “We’ve retooled the model so we work hard on facilitating local integration as we do on repatriation. “After a certain period, if refugees can’t be repatriated and can’t integrate locally, they would be guaranteed a resettlement spot. So we’re not going to keep producing protracted refugee situations.”

Fortress Europe

The European Commission has unveiled plans to roughly triple its spending on border controls in response to the refugee crisis. Spending in the 2021-27 budget period, which is currently the subject of intense negotiations between member states and the EU institutions, would increase to €34.9 billion, up from €13 billion in the current period. The EU’s executive says the money would be used to create a new standing corps of 10,000 border guards for the European Border and Coast Guard Agency, and create a fund to integrate and improve member states’ border management.

€3.2 billion would be held in reserve to help member states address unforeseen events that might cause a surge in people from outside the EU trying to cross its external border. Some southern European member states have been on the front line of the refugee crisis, with tens of thousands of people arriving by land and boat to the continent fleeing conflicts, poverty, and disasters in the Middle East and Africa. Southern member states have faced increasing pressure because of a refusal by some countries, including the UK and in the east of the bloc, to accept a quota to redistribute refugees and share the burden with those who are often the arrival point.

This week Italy’s new right-wing populist government turned away a refugee rescue ship with over 600 people on board, including children and pregnant women. Spain’s new centre-left government ultimately stepped up to take the people. Border control is one of the priorities of the government of Austria, which currently holds the rotating EU presidency and whose governing coalition includes a far-right party.

Fixing a malfunctioning system

The most compelling reason to reform the international protection regime is that it no longer provides protection for a sizeable proportion of those in need. Instead, it has become increasingly about who can pay, and one of its greatest beneficiaries has become the people smuggling industry.

The regime is also failing states; most importantly poorer states where the majority of asylum seekers and refugees are hosted. A first step towards reducing onward movements by asylum seekers and refugees is to understand why they move.

Among the most interesting proposals for viable alternatives is a shift away from understanding all solutions simply in terms of ‘fixing’ people in places, whether back at home, in their host country, or in a third country.

It has been suggested that instead, migration and mobility may help secure rights for the displaced in the long term; for example, by entitling refugees to enter the local labour market with the same rights as migrants, or issuing them time-limited labour visas so they have the right to come back to work should their return prove unsustainable. In this sense, perhaps, the idea of ‘durable’ solutions is now outmoded and might be replaced with ‘enduring’ solutions.

It is proposed, for example, that a mobility approach may help overcome the underlying obstacle to repatriation, namely the chronic weakness of states recovering from conflict. Why not realise the potential of refugees to contribute to post-conflict reconstruction, by facilitating cross-border strategies that allow them to participate without initially risking returning permanently, providing of course the minimal conditions of safety and stability have been established in the country of origin?

It is imperative for the UN SG, a former HC of UNHCR to address the serious gaps in protection now. 


 

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